Investigating and Prosecuting Disability Hate Crime: Best Practice
Contents
- Introduction
- What is disability hate crime?
- Police Referrals to the CPS
- Disablist Harassment
- Communicating with Disabled Victims, Reasonable Adjustments and Special Measures
- What is the impact of disability hate crime?
- Prosecuting Disability Hate Crime
Foreword
‘Disability hate crime is one of the most pervasive and underreported forms of hate crime. It is an insidious crime that can manifest itself in overt violence or subtle, yet deeply harmful, acts of prejudice and targeting. Its impact on individuals and communities remains far-reaching and profound.
'This best practice guide is an essential resource for prosecutors and police officers. It provides practical insights and pointers to assist in recognising, responding to, investigating and prosecuting disability hate crimes. Drawing on the experiences of those directly affected, as well as subject matter insights from academics and those who work to support survivors of disability hate crime, this best practice guide has a dual emphasis on both a victim-centred approach, as well as an offender-centric focus.
'As you engage with this guide, I encourage you to reflect on the broader societal implications of disability hate crime. Strong partnership working and interagency collaboration lie at the heart of addressing the complexities of these crimes. Let this guide serve as both a practical tool and a call for greater empathy and understanding for victims, as well as coordinated action in bringing more offenders of hate crimes to justice.’
Lionel Idan, Chief Crown Prosecutor, National Hate Crime Lead
Introduction
1. From February 2022 to March 2023, there were 13,777 disability hate crimes were reported to the police1. In that period, the CPS charge rate for disability hate crime was 78.8%2. This is higher than the charge rate for other types of crime.
2. The most common disablist hate crime offences reported to police during this period were harassment and stalking (36%) followed by public order offences (34%), violence against the person (18%), and criminal damage or arson to property (4%).3
3. In October 2023, the CPS and NPCC National Hate Crime Leads refreshed our shared commitment to the investigation and prosecution of hate crime, including building and referring strong cases.
4. The CPS has published legal guidance for prosecuting disability hate crime and a Public statement on prosecuting disability hate crime and other crimes against disabled people.
5. All CPS Areas have prosecutors nominated as Hate Crime Coordinators. We encourage local police leading on hate crime to get in contact with these prosecutors.
What is disability hate crime?
6. Section 66 of the Sentencing Act 2020 defines disability hate crime. This can be based on a demonstration of hostility towards the victim based on the victim’s disability (or presumed disability) at the time of committing the offence, or immediately before or after doing so (s.66(4)(a)(iii)). This often consists of words used by the offender towards the victim at the time of the offence.
7. Alternatively, the offence could be motivated (wholly or partly) by hostility towards persons who have a disability, or a particular disability under (s.66(4)(b)(iii)). This option requires further investigation to establish the offender’s motivations.
8. For both the demonstration and motivation provisions, “it is immaterial whether or not the offender's hostility is also based, to any extent, on any other factor” (s.66 (5)).
9. If the court finds that either or both of the two limbs of s.66 to be proved, then it is required to treat that as an aggravating factor and to ‘uplift’ the sentence that it would have passed if the case had not been aggravated by disablist hostility. When a sentence has been uplifted in this way it should be announced by the magistrate, District Judge or Judge in open court.
10. Victims of disability hate crime may be targeted for multiple protected characteristics. For example, a victim could be targeted because of their perceived disability and race at the same time. Where this arises, all of the appropriate monitoring flags should be applied.
11. Disabled people may be targeted or exploited by people they know. They may still be a victim even if they are perceived to have facilitated any aspect of that behaviour. Disability hate crime can happen within intimate relationships and in private spaces such as carers within the home4.
12. Disability is not always visible. If you are uncertain about a victim’s disability, you should ask them sensitively if they identify as someone with a disability or impairment. Victim impact statements are an opportunity for victims to explain and define their identity and protected characteristics. A support worker, support organisation, police officer or other agency working with the victim may be able to provide information about the nature of the victim’s impairment and how it affects them.
13. Not all older people are disabled. However, if you are reviewing an offence against an older person, you should consider whether this should be prosecuted as a disability hate crime, depending upon the facts and circumstances of the case.
Police Referrals to the CPS
14. Only CPS prosecutors can authorise charges for hate crime offences5. This includes disability hate crimes. The statutory time limit to bring a prosecution for most summary offences is six months from the date of the commission of the offence.6
15. It is best practice to refer an offence to the CPS for a charging decision in good time. In December 2023, the average time from a police referral to the CPS to charging a disability hate crime was 26 days7. Keep in mind that the reviewing lawyer may respond with an action plan requesting further evidence needed before they can make a charging decision.
16. In serious, sensitive or complex cases such as those involving a death or serious sexual offences, police can request early advice from a CPS lawyer8. In such cases this should be sought at an early stage of a case to help decide what evidence will be required to support a prosecution.
17. Depending on the issues involved, early advice may not be required. However, in cases concerning vulnerable victims who may require the support of intermediaries, it is important to contact the CPS Area to discuss referral arrangements particularly if an immediate charging decision is needed and early advice was not obtained9.
Disablist Harassment
18. Be alert to common disablist offences such as stalking and harassment which might be part of the background of the case. Gather information to establish whether the case is part of a pattern of behaviour. Victim impact statements are a rich source of additional information and may include examples of previous identity-based harassment, name-calling or abuse that could help identify patterns of victimisation. Harassment and stalking can take place at home in private, as well as in public places. See CPS prosecution guidance on stalking or harassment.
19. Be inquisitive and probe the ‘backstory’ to an offence involving a disabled victim. Some victims experience hate crimes and incidents over many years before reporting an offence. The full nature and extent of the offending by the perpetrator may not be immediately apparent from the initial statement. Probe the offender’s motive and gather evidence to support this. This may reveal potential bad character evidence or lead to further charges. Carefully consider the interview strategy and reasonable lines of enquiry. Take an offender-centric approach by focusing on the behaviour of the offender, their history and record, motive, reliability, credibility and wider circumstances.
Communicating with Disabled Victims, Reasonable Adjustments and Special Measures
20. Obtaining a victim impact statement is very important because the impact a hate crime has on victims can be enormous.
21. Research suggests that hate crimes can cause more harm to victims than other offences and cause more distress due to the deeply personal nature of identity-based victimisation10. As such, communications should be empathetic and investigations should be led with empathy. Always use appropriate and sensitive language, including in the case file which may provide the basis of communication with the victim. All victims of disability hate crime should be treated with empathy, even if they come from complex or difficult backgrounds.
22. Consider asking a carer, advocate, social worker, or family member for a statement as well. However, keep in mind that in some cases the perpetrator could be a social worker or carer, someone in a trusted position of authority.
23. Investigators interviewing disabled victims should have specialist training. Victims are the experts of their own experiences, so listen to them carefully. Seek to provide opportunities for disabled victims to engage in the criminal justice process in more flexible ways. For example, consider how, where and when people give statements as this may need to change based on individual needs, in order to enable them to provide their best evidence.
24. Do not assume you know what disability looks like for every individual. Some disabled victims require a lot of support to go through the criminal justice system, while others are able to do so with very little or no additional assistance. You can ask how a disability typically affects people, so that you can anticipate how to make reasonable adjustments to support them to give their best evidence.
25. The CPS Support Guide sets out the range of support available to disabled victims of crime, from the CPS, the police and other criminal justice agencies11. Use a Hate Crime Advocate where appropriate and accessible12. Victims of hate crime and persistently targeted victims have enhanced rights under the Victims Code13. Use Registered Intermediaries, Independent Sexual Violence Advocates and Children’s Independent Sexual Violence Advisors in appropriate cases14.
26. Consider the most appropriate way to communicate with each victim. Carers or specialist advocates may be able to advise on this. Consider what Registered Intermediaries, communication tools and support tools are available15. Ask disabled victims how they would prefer you to communicate with them, what information they would like and their preferred format. Make use of communication tools for disabled victims and witnesses such as BSL videos, easy-read documents, verbal updates with follow up email, plain English documents, audio descriptions and braille where available. The CPS has published Easy Read Victims’ Guides.
27. Prosecutors and investigators should adapt their communication style. Adopt an empathetic tone that takes into account and acknowledges that the victim has been going through a difficult time. Use simple language to explain decisions, criminal justice processes and legal terms, and avoid jargon. See the Disability Hate Crime Toolkit on use of appropriate language16. Consider whether communicating in person or by letter is more appropriate. If meeting the victim in person, explain who you are and why you’re there. Check if the victim would like anyone with them, be reassuring and patient. Consider how letters should be delivered depending on the victim’s circumstances. Provide reassuring updates about the progress of the case.
28. Ask the victim if they would like anyone with them when discussing the case. Make sure that the victim is happy for this person to remain with them, or if they would prefer to discuss the case without that person being present. Ask disabled victims if they would like you to communicate with their carer or through a support agency. Give victims an opportunity to voice any concerns about carers or support workers in a private and neutral place.
29. Vulnerability has a particular meaning within sentencing guidelines and carries implications for safeguarding beyond the criminal justice system. Be aware that just because someone has a disability does not automatically make them vulnerable. Keep in mind when communicating with victims that labelling someone as “vulnerable” could undermine their sense of independence and autonomy. The person may be in a vulnerable situation.
30. Ground rules hearings are an opportunity for the judge to make directions for the fair treatment and effective participation of disabled victims. Courts must take reasonable steps to ensure effective participation. It is important to support disabled victims by using reasonable adjustments and special measures appropriately.
31. Prosecutors can apply for special measures to assist ‘vulnerable or intimidated’ witnesses to give their best evidence (sections 16 to 18 of the Youth Justice and Criminal Evidence Act 1999 – see CPS prosecution guidance on Special Measures).There are a range of options that may be available including screens, live links, clearing the public gallery, removal of wigs and gowns, Video Recorded Interviews, pre-trial recorded cross-examination, intermediaries and aids to communication.
32. Reasonable adjustments could include giving victims with learning disabilities more time to prepare for court, more time to process and think about their answers. If you ask probing questions, explain their purpose, and have patience. Take breaks to ensure victims remain comfortable. It can be helpful to ask victims to reflect back on what you have discussed to ensure they understand or identify if they need further support to help them to understand.
33. Make use of remote evidence sites where applicable to enable a victim to give their evidence without being within a court building. It is important to enable disabled victims to give their best account at each stage through appropriate use of these measures. Keep accessibility in mind where hearing venues change.
34. For further information see CPS Guidance on Mental Health and Victims, Ministry of Justice Guidance on Achieving Best Evidence in Criminal Proceedings and The Advocates Gateway.
What is the impact of disability hate crime?
35. The impact on victims of disability hate crime can be severe and traumatic. Because of the frequency of some disablist incidents, the harm caused to victims can be cumulative.
36. Some victims normalise or minimise everyday incidents to such an extent that harm and trauma is not always obvious. Some victims may describe offenders as their ‘friends’ especially if the crime includes coercive control. Other victims may appear very distressed over what may at first appear to be a low-level incident. However, it is important to establish whether that’s because this is the latest in a long line of incidents and this was the final straw.
37. When looking at the impact on the victim, consider whether the victim has developed coping strategies. For example, common impacts of stalking sometimes include changing daily routines, going out less, not going out after dark, avoiding people or avoiding public transport. These are indicators of harms caused by fear of being targeted again.
38. Victims may laugh awkwardly or appear numb when discussing very traumatic experiences. Lessons can be learned from the trauma responses experienced by victims of domestic violence.
39. In some cases, offences may also have a wider impact on a community. Consider obtaining a Community Impact Statements (CIS) in appropriate cases where the offence has affected a wider community beyond the immediate victim. See CPS guidelines on the use of CIS in hate crime cases.
Prosecuting Disability Hate Crime
40. The Code for Crown Prosecutors states that prosecution is more likely to be in public interest where an offence is aggravated by hostility towards disability17.
41. Hostility based on disability, and targeting because of perceived “vulnerability”, are separate and distinct concepts and either can be present in the context of cases flagged as disability hate crime.
42. For cases that section 66 Sentencing Act 2020 does not apply to (because there is insufficient evidence of hostility based on disability) but where there is evidence that the victim was targeted because of their perceived vulnerability, this will still make an offence more serious for sentencing purposes.
43. Most hate crimes are prosecuted on the basis of a demonstration of hostility towards disability at the time of committing the offence, or immediately before or after doing so under section 66 (4)(a).
44. Prosecutors should also carefully consider if there is evidence of the offence being motivated, wholly or partly, by hostility towards persons who have a disability or a particular disability under section 66 (4)(b). It is important to keep in mind that hostility towards disability does not have to be the only motivation driving the offender (section 66 (5)).
45. When considering the offender’s motivation, you could review their phone messages or social media activity. Watch out for derogatory or dehumanising language by the offender and consider whether it is disablist. Expressing opinions that disabled people are less deserving, less human, inferior, or even a drain on resources can be a form of hostility for the purposes of disability hate crime or evidence of a disablist motivation.
46. Look at the wider circumstances around the offence being committed. There may be an imbalance of power at play (actual or perceived) in the relationship between the perpetrator and the victim. Committing an offence against that person because of their vulnerability (actual or perceived) may co-exist with attitudes of hostility, prejudice or bias.
47. If a case is flagged as disability hate crime on the CPS case management system but cannot prosecuted as aggravated based on the evidence, prosecutors must record the rationale for the decision in the file.
48. If there is sufficient evidence to support uplift under section 66 of the Sentencing Act 2020 prosecutors should apply for this irrespective of the seriousness of the main offence charged see CPS guidance on Disability Hate Crime and other crimes against disabled people. Disablist murder can be uplifted under, increasing the minimum term for a life sentence for murder aggravated on the grounds of the victim's disability18.
49. Consider making an application for a criminal Restraining Order (section 360 Sentencing Act 2020 - see CPS prosecution guidance on Restraining Orders) or a Criminal Behaviour Order (section 331 Sentencing Act 2020 - see CPS prosecution guidance on Criminal Behaviour Orders).